I know I am going to regret this

First of all, enough already with the breathless coverage of Edward Snowden’s location.  Really.  Enough.  As much as everyone would like life to resemble a Robert Ludlum novel, it so rarely does.  Unless there is something innately newsworthy in his absence from a plane, I don’t need to know which vaguely hostile nation is harboring him at any given time.

So I know I am totally asking for it by saying this, but maybe we can all take a moment to pause in penning our various encomia to Mr. Snowden?  This being a community with its fair share of libertarians, it is probably the very height of foolishness not to start composing my own paean to his greatness.  But for some reason I am seeing a very murky situation where apparently everyone else sees stark black and white.

One cannot have absolute liberty and absolute security.  One must compromise one to maximize the other.  Where one draws those lines varies from person to person.  I respect the positions of those whose values rest more solidly on the former, but that doesn’t mean any preference for the latter is inherently malevolent.  And one individual’s decision to compromise the latter because he favors the former is not heroism on its face.

Further, if I were to craft a program that would strike as good a balance as possible between the two values, my understanding of the leaked NSA programs is that they seem to have done a reasonably good job of it.  (I expect to have this misapprehension vigorously disputed in comments.)  Just because Congress does a piss-poor job with oversight when it doesn’t involve something that rhymes with “Mengazi” doesn’t mean such oversight wasn’t appropriate or sufficient by design.  Call me naive, but I don’t inherently mistrust the government.  Frankly, I take a strange kind of comfort when both John Boehner and Al Franken defend something.

Finally, Mr. Snowden obviously broke the law.  I saw somewhere on Twitter (I think it was Julian Sanchez’s feed, but I may be wrong) a glib dismissal of calling for him to be prosecuted on the grounds of “Because laws!”

Um…. because laws!  (“Because liberty!” is not an argument, either.)  If you think the laws are pernicious or unjust, by all means agitate to have them changed.  But just because someone’s violation of the law comports with your values doesn’t mean that prosecution of that individual isn’t the proper action on the government’s part.  It seems entirely plausible to me that Mr. Snowden’s actions have compromised national security, and far from obvious that his doing so was so unmistakably noble as to obviate the need for a trial.

Those with a more absolutist stance on civil liberties will doubtless disagree with me, but I am not yet ready to crown this man a hero.  I see an admixture of good and bad, pro and con in this whole mess, and find his leaks admirable in some ways and deplorable in others.   I believe that our government has a legitimate interest in safeguarding the security of its citizens, and that those safeguards may intrude in ways both acceptable and not on our liberties.  To what degree we tolerate those incursions on our liberty is a subject for sincere debate.  But I’m not willing to give this man a “get out of jail free” card just yet, and I don’t think calls to do so pay due attention to all the issues at play in cases like this.

Russell Saunders

Russell Saunders is the ridiculously flimsy pseudonym of a pediatrician in New England. He has a husband, three sons, daughter, cat and dog, though not in that order. He enjoys reading, running and cooking. He can be contacted at blindeddoc using his Gmail account. Twitter types can follow him @russellsaunder1.


    • Swartz broke the law and deserved to stand trial for it. He did not deserve to be threatened with financial ruin and decades in prison for an offense which did not begin to warrant that kind of punishment.

      • One thing worth mentioning with respect to the Swartz case – and really most cases involving federal prosecutions – is that the press’ reporting about maximum sentences is usually horribly off-base. The indispensible Ken White at Popehat did a good job explaining how this applied in the Swartz case here: http://www.popehat.com/2013/03/24/three-things-you-may-not-get-about-the-aaron-swartz-case/

        That probably doesn’t address the issue of financial ruin (about which I lack any information one way or another), but it does indicate that he was realistically facing a maximum sentence of about 7 years, and that much only because of how aggressively the feds like to prosecute cases.

        Even if you’re not persuaded by that piece, it’s worth reading – it (along with most of Ken’s writing) validates the existence of the internet.

        • Thanks for sharing that piece, Mark. As you say, Ken does what he normally does… knock it out of the park.

        • that much only because of how aggressively the feds like to prosecute cases

          I’m not sure what “only” is doing in that sentence. My point was about how aggressively the feds like to over-charge and ask for judges to over-sentence.

          • Oh, absolutely. I was just trying to get at the fact that even in this case the overaggressiveness did not include a threat of decades in prison, but rather 7 years, which may well have still been far too much, but is a far cry from the 30+ years being widely reported.

  1. I think part of the problem with this story is the detail is…insufficient. It can describe everything from various data providers and the US government collaborating to make data requests easier to process (And even in a perfect world with perfect oversight by perfectly impartial folks with perfect views on liberty, there would be a LOT of data pulls) — you know, so that it’s pretty much “Here’s the electronic warrant, here’s the parameters, and then here’s my data, formatted just like I wanted” rather than “here’s some paper, here’s me hanging around being obnoxious, here’s the data in a useless format, here’s me back again with lawyers, here’s you with lawyers, here’s arguing, and finally here’s my stupid data”.

    It could also be an Orwellian nightmare state. It’s really impossible to tell. Which means what many people are going to think about it is going to be colored by their previous views on government and their ideological disposition. (Not so much partisan as where you fall on the privacy/security aspect and where you draw lines).

    The breathless coverage — much of it walked back to various degrees — hasn’t helped. And since it’s classified, it’s not like there’s gonna be clarification to any great degree.

    I’m left where I started — the government legally gets a LOT more data than I’d like (as does private companies) without a need for warrants, it gets a lot of warrants for even more data under a court that is very generous towards the government, and Congress’ oversight role has been…not zealously prosecuted to the extent I would like. That is all I know for certain.

  2. “One cannot have absolute liberty and absolute security. ”

    Of course not. Life offers few absolute anythings, and neither of these is ever on offer. But it’s only sometimes true that there is a tradeoff between liberty and security.

    Much more often, I think we surrender liberty for no security whatsoever. Sometimes we surrender liberty and it makes us a lot less secure, as when we increase the risks of devolving into a police state. And sometimes, of course, we see liberty and security mutually reinforcing each other — as when we know that walking down the street, we will not likely be attacked by armed bandits.

    It is surpassingly odd to me that “liberty vs security” is presented so often as if it were an obvious tradeoff, but only when someone wants to take away a little more liberty by frightening us a little bit more.

    In all other cases, a reflective individual will recognize that it’s some of one, some of the other; sometimes liberty and security reinforce each other, and sometimes they don’t.

    I’m following the personal story of Edward Snowden very closely not because it resembles a spy novel — I don’t like spy novels — but because the way we treat whistleblowers is important in our society. Yes, Snowden broke the law, but sometimes laws need to be broken. Daniel Ellsberg broke the law too, and I am glad they both did.

    Law attempts to command universal assent, but it can’t always do so. (That’s another absolute that we should never expect to see.) But a bare minimum that all laws must do is to make the effort toward universal assent: Laws must be publicly justifiable in principle. Secret laws are presumptively wrong. Even the horrible fact that our government monitors all of our telecommunications becomes a little bit more justifiable when we at least know that it’s happening. I don’t think it meets the bar there, but I am eternally grateful that at least we know a bit more about it.

    When the government lies to its citizens and spies on them, that’s in almost every case a serious problem. For the times when it’s permissible, we have warrants. Other times, our Constitution tells the government to back off. To break laws in defense of the Constitution is really to break a lesser law in favor of a higher one. That’s not only alright by me, it’s — yes — heroic.

    • I concur but I think one of my issues with libertarians is how they are seemingly blind to the idea that people might be willing to give up some liberty for safety/security.

      I’m not merely talking about surveillance state stuff. But mainly about welfare state and social safety net issues.

  3. I totally agree Snowden broke the law.

    I’m glad that he did; but I’ve been concerned about privacy in the age of computers since I wrote some of the prototype welfare-fraud detection systems back in the early 1980’s. I wish people took this stuff more seriously.

    I agree with Burt, upthread, and the comparison to Aaron Swartz. The force of the government, particularly force that’s classified and operating against US citizens in secrecy, needs sunlight.

    Snowden broke the law; but how else were we going to air this particular bit of dirty laundry?

    • I’m not arguing necessarily that this bit of dirty laundry (if one wishes to call it that, which strikes me a bit as begging the question) didn’t merit airing out. But that does not, in my mind, equate with a justification for exempting Mr. Snowden from prosecution.

      • Well, I guess I’d agree with you but. . . there is a long standing tradition of civil disobedience to shine light on unjust law or overreaching law.

        How can society balance justice with civil disobedience? Must we make martyrs of people like Snowden?

        • Isn’t a part of civil disobedience a willingness to accept the consequences for one’s actions?

          If we think that what Snowden did should be illegal, then we should agitate for changing the laws, not just ignoring specific offenders of the law.

  4. Very well said. It seems obvious he broke some laws. I’m glad he put this info out there, but it does look like he broke some laws. There isn’t any ” we’ll give you a mulligan on those laws just because” clause. In fact committing civil disobedience usually requires breaking laws. That is part of the deal.

      • >There isn’t any “we’ll give you a mulligan on those laws just because” clause.

        I know this sounds ever so sensible, but it’s really rather silly. Of course there is. Lots of semi-serious crimes (burglary, mugging) are just never seriously investigated because the police decide it’s not an efficient use of their resources, even if they’d stand a decent change of apprehending someone. Leaked classified information appears in the newspapers every day without prompting a leak investigation—again, either because the information isn’t that important or the administration tacitly approves of the leak.

        Federal prosecutors annually decline to prosecute about 75% of the terrorism-related cases referred to them by law enforcement. For crime more generally, actual jury trials are a relative rarity: The vast majority of indictments result in a plea deal, which in most cases entails a prosecutor implicitly deciding not to enforce some of the laws a defendant could be charged with violating. What kind of plea deals are offered or accepted are typically a function of a host of discretionary judgment calls about how much harm a defendant inflicted, how likely they are to offend again, what kind of deterrent effect a harsh penalty would produce, and so on.

        So we give people mulligans on laws all the time. Indeed, the mulligans are vastly, vastly, vastly more common than relentless enforcement. They’re perhaps nowhere so common as in the realm of intelligence, where it’s common to the point of cliche that intel agencies will decide that the best interests of national security are served by turning a blind eye to this or that criminal offense.

        You’re certainly welcome to argue that the deterrent value of jailing a high profile leaker like Snowden justifies a costly effort to bring him to heel for actions that even critics seem to regard as having provoked some healthy democratic debate. But that argument actually needs to get made. Acting like it’s sufficient to observe that a law was broken—as if the norm is to automatically pursue and charge every infraction at all costs—doesn’t really cut it. The decision to devote resources to going after Snowden (as opposed to the myriad other offenders investigators and lawyers could be pursuing) is precisely that: A decision, not some inexorable consequence of a violation of the law.

        • I am super-tickled you stopped by the comment, first of all.

          You’re certainly welcome to argue that the deterrent value of jailing a high profile leaker like Snowden justifies a costly effort to bring him to heel for actions that even critics seem to regard as having provoked some healthy democratic debate.

          I’m arguing the converse, that his actions are not so obviously noble and in the service of the country as to mitigate any harms done or render null any point in prosecuting him.

        • I’ve had a chance to read a bit more thoroughly (I was between patients before) and I take issue with your second paragraph. There is a big difference between an individual being indicted and then offered a plea deal and an individual facing no prosecution or penalty at all. You’re failing to argue your own stance on the merits by conflating prosecutorial discretion with escaping prosecution outright.

        • Julian, it seems like you’re unfairly only following your own counter-argument partway through.

          You are right, of course, that there are all kinds of crimes committed where authorities decide not to investigate, make arrests or prosecute, for a myriad of reasons. (e.g.: not enough evidence, extenuating circumstances, a decision no harm was done, etc.) Sometimes its easy to agree with those decisions, other times they confound us, and other times we get it but it still drives us up the wall (see: whenever your car is broken into).

          But with those other crimes, when the authorities do decide to investigate, make arrests and prosecute we do not declare them “vindictive,” and ascribe to them of the most heinous of motives. Nor do we collectively say that those who have committed those crimes are heroes and deserve to face no consequences for their actions.

          I think you’ll find that if you follow your own counter-examples to Russell all the way through in your mind, you’ll see that they don’t necessarily hold the weight you’re asking them to shoulder.

    • Oddly, we do have a mulligan clause. It’s the presidential pardon power. I hope he gets one, but I don’t think it will come from Obama.

      And while civil disobedience does require breaking laws, I see no reason that one is obliged afterward to meekly accept punishment. Unjust laws have no power to evoke punishment, and to suggest otherwise is to concede the fundamental justice of the law.

        • If the law is used unjustly, we would never know; it would never be evident because the law is a classified secret. That’s the problem.

          • Since Congress passes laws, I’m not sure that I’d think congressional oversight can answer the need for public scrutiny; particularly in the face of classified programs. One of the problems here is that even of a single member of congress feels there’s a problem, she cannot speak out — even to other members of Congress without the required security clearance; she would be in violation of law.

      • Unjust laws have no power to evoke punishment

        I agree with this 100% and there are a handful of examples that those inclined to come up with examples could easily provide to a chorus of “That’s Different!”

        • But in this case, at least, I think those rushing to write hagiographies of Snowden are begging the question that the laws by which he would be prosecuted are unjust. I do not believe that is clear, or that the discussion has been anything like sufficiently nuanced to do the complicated nature either of the NSA programs nor the liberties they infringe upon justice.

          • This is one of those things where if he released, oh, detailed instructions on how to make and maintain an ICBM (just to pick an easy example), I’d see this as a betrayal of some serious secrets.

            The fact that the information he released was how the US is spying, without warrants, on US citizens is what makes me see the law as unjust. The Constitution pretty much says “the government can’t do that” and the release of the information that it’s doing it anyway is, yes, giving away information that the government would want to keep hidden but the government wants to keep it hidden because it’s unconstitutional.

      • He has a right to vigorous and righteous defense in front a jury. Pardons don’t say you didn’t break the law though.

        Unjust laws are sort of in the eye of beholder though aren’t they. I’ve had people complain to me how there beating the crap out of their kid or their DUI were unjust for various stupid reasons.

    • I’m with Greg on this one, and must stand opposed to JK. As well as Russell being right that the law against revealing classified information is not obviously unjust, even if what is concealed is obviously unjust, civil disobedience has little force and meaning if it has no cost.

      • The law against revealing classified information is not in itself unjust. But when it’s used to shield unjust conduct, well, then it’s just enabling evil.

        Suppose we weren’t running a clandestine domestic spy service, but rather conducting a clandestine genocide.

        How much force would you give the law against revealing that information? Less, I’d imagine. Which says to me that this law in part derives its justice from the types of things we’re hiding.

        If and only if you think spying on all Americans is a good thing, you will approve of the U.S. government’s actions against Snowden. Otherwise, less so.

        Added to that, I find it preposterous that this instance of civil disobedience has “little force and meaning.” It’s provoked a very important national conversation, and I do hope that there will be serious consequences from it, whether or not Snowden is arrested, or killed, or never seen again, or whether he dies in his sleep at age 103.

    • So the problem is not defending his leak, but defending his flight? That, if he’s willing to leak, he should be willing to take his chances on a fair trial by a jury of his peers?

      A reasonable principle.

      But look at the government’s treatment of Bradley Manning: not merely confining and trying him as any other criminal, but subjecting him to unusually harsh treatment while in custody pre-trial. Treatment that was, in fact, found to be unlawful when a judge finally examined his case. So we have the government willing to use punitive conditions as an extrajudicial, pretrial means of retaliating against a leaker.

      Do you think that might have anything to do whether it’s reasonable to expect another leaker to submit to government authority?

      • I’m not going to argue that people have any sort of duty to martyr themselves, but by exposing themselves to potential injustices in the system and bring those to light… isn’t that one of the best ways to bring about greater change and ceasing those injustices? If we say that Snowden must run because, if he doesn’t, the government bogeymen will get him… well, maybe that’s true, but maybe not. And it gives no opportunity to call out those government bogeyman because as long as Snowden is on the run, they remain at bay (presuming they exist at all). But if/when Snowden is tried and if/when those bogeyman expose themselves, we’ll be better positioned to challenge them.

        Now, I don’t know if Snowden’s goal is/was to expose the bogeyman. But if it is… if he is saying, “Our system abuses defendants,” then the best way he can make that case is by exposing the abuse, not hiding from its hypothetical existence.

        • His goal is to call out the “the government is spying on us” bogeyman. That’s why he leaked the information he did.

          I don’t know that he’s obligated at that point to be specifically calling out the “our system abuses defendants” bogeyman to be afraid of being subjected to those abuses. Especially since, for the last high-profile government leaker, it’s less of a “bogeyman” and more of an established fact in the judicial record.

        • Kazzy, remember the price he is paying. He may not be facing justice here, but he’s forever an exile now. His given up his homeland.

          I’m not sure I’d have the fortitude to do as much.

    • One thing worth mentioning is that it’s actually not so cut and dry as to whether he broke any criminal statutes. This is my second consecutive comment linking to Ken at Popehat, but as I said, the guy is indispensable.

      Basically, Snowden is charged with three offenses – theft of government property, unauthorized communication of national defense information, and communication of classified information to an unauthorized party.

      On the theft charge, the government needs to show an intent to deprive the government of use of the allegedly stolen documents, and it’s not at all clear how making a leak of this information deprives the government of that use. On the other two charges, as Ken points out, the government needs to show that the release was actually harmful to the United States, and that

      This puts our government in the position of attempting to prove that it is harmful to release accurate information about how it is spying on us, and how it is misleading us about spying on us.

      Espionage charges usually describe someone with classified information leaking that information to powers hostile to the United States government.

      We, the people, are those hostile powers.

      Link: http://www.popehat.com/2013/06/23/a-look-at-the-charges-against-edward-snowden/

      • We, the people, are those hostile powers.

        This whole case continues to be about how we can’t stop hitting ourselves.

      • Also, for what it’s worth, my assumption is that the requirement that the government prove actual harm to the United States is to protect whistleblowers from prosecution, though that assumption could be wrong. If Snowden can show that his leaks were, at least in part, made to contradict sworn testimony of government officials before Congress, I think the government will have an uphill battle convincing a jury that the United States was actually harmed by the leaks.

        • Huh. So the false testimony to Congress could be Snowden’s ticket to freedom.

          Fascinating, the webs we weave.

          • On March 12, 2013, during a United States Senate Select Committee on Intelligence hearing, Senator Ron Wyden quoted the keynote speech at the 2012 DEF CON by the director of the NSA, Keith B. Alexander.[31] Alexander had stated that “Our job is foreign intelligence” and that “Those who would want to weave the story that we have millions or hundreds of millions of dossiers on people, is absolutely false…From my perspective, this is absolute nonsense.”[31] Wyden then asked Director Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” He responded, “No, sir.”[31] Wyden asked “It does not.”[31] and Clapper said “Not wittingly. There are cases where they could inadvertantly perhaps collect, but not wittingly.”[31] Notably, while making these statements, he hid his face behind his hand and rubbed his forehead, appearing uncomfortable. Many[who?] have noted that his body language was clearly suspicious, and may have indicated untruthfulness.[32]
            On June 6, 2013 Director Clapper released a statement admitting the NSA collects telephony metadata on millions of Americans telephone calls.[33] This metadata information included originating and terminating telephone number, telephone calling card number, IMEI number, time and duration of phone calls, but did not include the name, address or financial information of any subscriber.[34] Jody Westby of Forbes argued that due to the revelations, the American public should ask Clapper to resign from office, arguing that “Not only did Mr. Clapper give false testimony to Congress, even his June 6 statement was false. We now know — since the companies identified by the Washington Post have started fessing up — that lots more than telephony metadata has been collected and searched.”[35] Fred Kaplan of Slate also advocated having Clapper fired, arguing “if President Obama really welcomes an open debate on this subject, James Clapper has disqualified himself from participation in it. He has to go.”[36] Andy Greenberg of Forbes said that NSA officials along with Clapper, in the years 2012 and 2013 “publicly denied–often with carefully hedged words–participating in the kind of snooping on Americans that has since become nearly undeniable.”[31]
            On June 12, 2013, United States House of Representatives member Justin Amash became the first Congressmen to openly accuse Director Clapper of criminal perjury, and calling for his resignation. In a series of tweets he stated: “It now appears clear that the director of national intelligence, James Clapper, lied under oath to Congress and the American people,” and “Perjury is a serious crime … [and] Clapper should resign immediately,”[37] Rand Paul said “The director of national intelligence, in March, did directly lie to Congress, which is against the law.”[38]

            source: http://en.wikipedia.org/wiki/James_R._Clapper#False_testimony_to_Congress

          • Zic’s got what I had in mind.

            One other thing that makes this a bit ambiguous in my mind – presumably, to show actual harm to the United States, the government needs to demonstrate that the leaked information was properly classified. It is not at all clear to me that this is the case; indeed, a lot of those arguing in support (or at least for ambivalence) of the policies Snowden exposed have essentially been making the argument that this is something that everyone should have assumed or known was going on for quite some time.

            Last but not least, it’s not at all clear to me how orders or programs reliant on (at least theoretically) involuntary coordination and communication with private third party entities can be properly deemed as classified top secret, though I could well be wrong on that.

          • I don’t know about that, Russell. You’re suggesting that the only way this would help Snowden is if Clapper’s testimony was the reason Snowden revealed what was going on.

            I don’t think Clapper’s false testimony is required as motivation; but as parallel evidence that the government was actively in the process of misleading Congress. The point is, it moves Snowden’s actions from the realm of ‘leaker’ to the realm of ‘whistleblower,’ and as Mark T. pointed out, this evokes the government’s obligation to defend him as a whistleblower.

          • So I should probably inch back on my very thin ice, since my legal expertise is essentially nil. This all loops back to my major point in all of this, which is that it’s too early and too murky to be lionizing Mr. Snowden just yet.

          • Mark,

            Last but not least, it’s not at all clear to me how orders or programs reliant on (at least theoretically) involuntary coordination and communication with private third party entities can be properly deemed as classified top secret, though I could well be wrong on that.

            Do you mean with private civilians (businesses) working on classified stuff? I think there’s a pretty long tradition of this; and it’s well established — civilians can have security clearance, too. (This is also one of the reasons so many former-military end up working in the defense industry — their security clearances are valuable.)

          • Zic – I was more thinking of the fact that the collaboration involved in these programs is at least in theory involuntary on the part of the corporate entities, undertaken in connection with a court order rather than pursuant to an agreement. At least in theory this means that the government is simultaneously forcing these third party entities to provide information while prohibiting them from disclosing the fact that they’re being forced to provide that information. That raises a lot of free speech/prior restraint concerns that wouldn’t be present in the circumstances of a purely voluntary agreement to provide the information in which the third parties are officially getting some sort of consideration for both their cooperation and silence.

          • Mark, I get what you mean now, and that’s an excellent question.

            It goes to the point of Google, Microsoft, etc. having to ask permission to reveal how many data requests they get, how those break down (local law enforcement, FBI, NSA, etc.) and how many they refuse.

            I haven’t bothered to go read, but my elder sprout tells me this is an active topic of discussion in the Open Source world, and there’s some concerns of malicious code in existing projects for collecting data. Also concerns of actual hardware functions to do this. I can ask him for direction, if you’re interested, but I’d start by searching arstechnica.

          • Mark, here’s an interesting look at the cost to those 3rd parties from Businessweek.

            The money quote:

            While tech companies must protect their reputation with U.S. users who worry that their private correspondence is being monitored, they may also face more critical consequences abroad. With the government claiming it principally targets communications between the U.S. and other countries, overseas customers of companies like Facebook and Google may want greater protections. (Under the current version of FISA, foreign citizens have almost no rights.) Other nations may demand the same surveillance privileges they believe the U.S. government enjoys.

        • And thus the slipper slope inclines.

          Next, I’ll be looking for prosecution requests for records that the telcoms no longer have, to prove someone’s guilt. Hell of a lot cheaper to let the gov store all that stuff, after all.

        • That’s really interesting. I have to think through all of the implications, but it definitely does seem relevant to all of the legal and moral issues. How the government responds to the order will be most interesting of all.

          Presumably, the order will ultimately get ruled on by the 11th Circuit because I can’t imagine the feds just complying with it without a fight. But on what grounds will they be able to fight it? If they go national security, they’re not going to be able to say that this particular defendant’s records are some sort of national secret. They may claim that the existence of the program itself is the national secret, but now that the cat’s out of the bag, that will be hard for them to argue. Maybe they can say that disclosing the records will disclose confidential secrets about how the data is maintained and how the program operates by effectively acknolwedging how long the data is stored?

          If they wind up having to comply with the order, though, then it significantly increases the burden of running the program as other parties in similar positions will presumably start demanding this information as well. And if the logic gets extended to civil cases and to document demands from prosecutors, then you’re really starting to look at a large number of inquiries with which the NSA would have to comply.

          There’s also this – the court orders requiring the telecoms to provide the data to the government were obtained by the FBI, which is part of the DOJ, even though the data was to be provided directly to the NSA. It’s at least arguable that under the circumstances this constitutes evidence in the possession of the prosecution such that the prosecution would ordinarily be required to turn it over to the extent it could exculpate a defendant. There may be implications to that aspect of this, as well.

          • This is one of those things where I can easily imagine the prosecution finding evidence that helps them (the phone traveled from within range of Tower X to Tower Y at the time of the crime, and the crime was committed within range of Tower Y) and the defense finding evidence that helps them (the phone was always within range of Tower X and the defendant had a conversation on this phone 3 minutes before the crime and thus could not have been at the scene).

            So long as both sides have access to the information… I’m finding myself inclined to like the idea, of all things.

          • Does a state court even have the authority to require a federal government agency to turn over documents in state legal case to which the feds aren’t a party? I should probably know the answer, but I don’t.

          • Jaybird, what you’ve described here — echo-location by proximity to cell-phone tower — is really frightening; something I’ve been wondering about. Because this isn’t the ‘meta data’ of phone calls; it’s the log of your phone’s contact with the cell phone tower. That’s a much bigger sweep of data then anyone’s talking about, but from what I understand of how data networks work, it seems completely within the realm of possibility; and I wish I knew if it actually is possible.

            If anyone’s got actual real knowledge, be obliged if they’d share.

          • If anyone’s got actual real knowledge, be obliged if they’d share.

            Man, times are tough when we have have to pre-emptively categorize the types of knowledge we’re looking for.

          • We’d have to talk to a mobile phone expert but I imagine that there are semi-regular “pings” from the phone ensuring that the “handshake” is still good so that when someone calls the mobile phone, the network knows how to get from there to here…

            Do we have any experts?

          • James, if you’re asking for actual real knowledge (heh, sorry zic!) then I can’t help out. But it seems pretty doggone obvious to me that the Feds will reject the request in any event, and the state will have to make a separate case against the Feds in order to proceed with the request.

          • Still, I in theory, it would be easy to build a log of every time your phone pings a tower or a tower pings your phone. That’s just data.

            What I mean was how knowledge of actual software implementation. I know it could be done, I’d guess it could be logged, and that it could be collected by NSA. But I don’t know if it’s actually done, which would be the only first step to guessing if it’s collected by NSA. Thus far, the conversations in public have included calls and internet; but tower-proximity (without actually making a call or accessing the internet) seems potential. That’s what I’m asking for ‘real knowledge’ on.

            Still, it’s always fun to be made fun of by Still.

          • Still,
            If I was in the market for non-actual unreal knowledge, I’d have the great expanses of the internet to turn to. Instead, I come here.

          • @James – the court in the link is a federal court. I’m embarassed to admit that I’m not entirely sure as to the extent state courts have the ability to compel appearances or production from the feds.

            That said, even to the extent that authority is lacking, a FOIA request would have much the same effect.

          • Mark,

            Thanks. Since it was a murder case I was assuming it was state court. I have no doubt a federal court can compel a federal agency, but of course the agency can appeal the order before it has to comply.

            I wouldn’t put much faith in a FOIA request, though. Delay and extensive redaction are normal, and the redactions can easily hide the info you really want.

          • We’d have to talk to a mobile phone expert

            Mine is blue!

      • “One thing worth mentioning is that it’s actually not so cut and dry as to whether he broke any criminal statutes. ”

        This is true, but it bears equal mention that at least part of the reason is that it’s a little hard to know what exactly it is that he’s done. As we all know now, much of what he claimed in his first interview seems now to be either highly exaggerated, or just plain made up (depending on your inclination to root for or jeer him). And because I can’t see the government vomiting up admissions of every way Snowden may or may not have put state secrets at risk, I’m not sure why any of us actually believes we know what’s what about him.

        He is adamant, for example, that he was not paid for the documents he gave to foreign powers. And had he had a very different kind of first interview with Greenwald, I suspect I might take him at his word. As it is, is there really a reason I should assume he hasn’t sold state secrets to foreign powers?

        Snowden is like Zimmerman: he’s a Rorschach test.

    • Having seen only a crappy local production of “Les Miz” and neither seen the movie nor read the book, you will have to flesh that question out for me before I can attempt an intelligent response.

      • Oh, you totally need to read the book. In the absence of that, the 1998 version with Aslan and Geoffrey Rush will do in a pinch (this version isn’t a musical but has the best Javert).

        The question the extent to which we need to defer to the law when the law is at odds with moral action.

        Javert chased Jean Valjean all over France for many, many years. He eventually had to ask the question of what one does when one is faced with a choice between the two.

        • I am not necessarily saying that Mr. Snowden has a moral obligation to stay and stand trial (though as Mr. Aitch notes supra, it would certainly give his actions greater moral weight). I am saying that it is insufficiently clear to me that the leak of information was sufficiently meritorious that the costs in terms of national security were worth it, or that he should be treated as a hero.

          • Well, the “hero” thing might be a bit overstated but the leaks so far seem to be of the form “here’s confirmation of the stuff you already knew but couldn’t prove”.

            The information, as far as I can tell, is embarrassing rather than damaging.

        • Oh, you totally need to read the book.

          Seconded. And avoid abridged versions. Just settle in for a really long and wonderful story.

  5. Russell,

    Since this story broke out, something’s been bothering me about the way some people have been portraying Snowden, and I think you put your nail on it. So good job.

  6. Russell, for what it’s worth, I agree with a lot more of this than I disagree with. I think I am less sanguine about the policy itself, but I am a lot less critical than most of our fellow Leaguers. I am on board with just about everything you say about Snowden.

  7. “If you think the laws are pernicious or unjust, by all means agitate to have them changed.”

    Get then changed? Sure, and I’ve got a bridge to sell you in San Francisco.

    “But just because someone’s violation of the law comports with your values doesn’t mean that prosecution of that individual isn’t the proper action on the government’s part. ”

    I’m not against him being prosecuted, because Laws!, in a real court, with a jury, with public access. That’s unlikely to happen either because of because laws (national security and disclose of stuff). Convenient how that works out for the powers that be, huh? Put me on the jury, I’ll nullify, our inherent right to not convict someone if we disagree with the law.

    That all being said, I am enjoying the USG react as this guy eludes them. Watching sanctimonious people who are used to getting their way sputter when it doesn’t, falling back on because laws! only when it suits them. USG meet your petard.
    Is this dude a hero? Nope. But his actions have been revealing. This is what you’ve been sending your tax money for—to get spied on.

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